The only questions argued by the counsel arise on the charges of court, and of these, we shall confine ourselves to the consideration of the 18th and 19th charges, as these are the only ones in which we are able to discover any errors. The 18th charge is in the following words, -to-wit: “ Unless the jury believe from the evidence, that William Curtis, if of sound mind, would have included Mr. Cotton or his children in the benefit of his will, they cannot set the will aside, because he may have excluded them, under an insane delusion as to Mr. Cotton; and if Mr. Curtis, when sane, was greatly incensed towards Mr. Cotton, and if he indicated his determination not to allow him to inherit his estate, this is proper evidence to be considered along with the other facts in the case, as to whether he excluded the children, for this cause, and not because he was partially insane as to him.”
This charge is somewhat involved, and is, by no means clear and perspicuous, and may, very readily, have embarrassed and mislead the jury; but its fatal fault or error is, that it announces an erroneous legal proposition, in this, that a will is valid, although the testator at the time it was made, may have been under a particular insane delusion, and by reason of such insane delusion, a person entitled? in case of intestacy, as an heir-at-law, to inherit the estate of the testator, or a portion of it, is excluded from any benefit under the will, unless the jury' should believe, from the evidence, the testator, if of sound mind, would have included such person in the benefits of his will.
In other words, a will may be upheld, although the direct offspring of a particular insane delusion, if the jury believe the testator would have made the same will, if he had been sane. Such a proposition, we think, cannot be maintained either on reason or authority. Mr. Shelford, in his work on the law of Lunatics,- par. 37, says, “ the existence of insanity is a fact, which, by the law of England, is not in *397general decided without the intervention of a jury, whose decision, in such cases,- ought to be founded on clear and unexceptionable evidence submitted to their consideration” — that “ reason, being the common gift to man, raises the general presumption, that every man is in a state of sanity, and that insanity ought to be proved; and in favor of liberty and of that dominion which, by the law of nature, men are entitled to exercise over their own persons and properties. It is a presumption of the law of England, that every person who has attained the usual age of discretion, is of sound mind, until the contrary is proved." And again, on page 389, speaking of wills impeached on the ground of the partial insanity of testators, he says: “Proof of the existence of partial insanity will invalidate contracts generally, and will be sufficient to defeat a will, the direct offspring of partial insanity, both in the courts of common law, and in the ecclesiastical courts, although the testator, at the time of making it was Sane in other respects, upon ordinary subjects.” The reason of this rule is, because a will thus made, is an insane act — that is, tbe act of an insane man, and the law will not sanction nor uphold such an act. We understand this to be the principle decided in the case of Florey v. Ilorey, 24 Ala. 241. There the testator, under the insane delusion that a certain person was his son, made him the principal beneficiary of his will. The court held the will invalid, for that reason. But in this case, the jury were charged they might sustain the will, although they believed the testator excluded the contestants from all the benefits of his will, notwithstanding the testator in doing this, was acting under an insane delusion, provided they also believed the testator would not have included them, if he had been sane..
On the hypothesis of the charge, in this case, the testator made his will under the influence of an insane delusion, and we are unable to find any good reason why the will should be held invalid in the one case, and valid in tN other. In each case, the testator acted under an in' delusion, therefore, in each case, the will should b^ be invalid. In the one case, as in the other, ^ ascertained the will was the offspring and fir' *398delusion, it should be declared void, without inquiring what the testator would or would not have done, if he had been of sound mind and memory. Such an inquiry was not pertinent to the issue, and might distract and mislead the jury. For the foregoing reasons, the charge is erroneous, and should have been refused.
The 19th charge is in the following words, to-wit: “ If William Curtis knew or believed, that the result of his dying without a will, would be to leave the children of Darius Curtis without any support out of his estate, because their father had received advancements from him in negro property equal to, or greater than, his share in the value of his estate, at the time he made his will, and if he made his will to provide for said children, and to prevent them from being left so unprotected or unprovided for, and if he did this in the exercise of his reason, these provisions of his will are lawful, and the will containing them, will be upheld, although he may have had an insane delusion as to Mr. Cotton, by reason of which, he failed to make any provision for his children in said will.”
This charge, if it were not for the last clause of it, would be unexceptionable, but with it, it should have been refused, for reasons stated in disposing of the objections to the 18th charge.
We have carefully examined the evidence set out in the bill of exceptions, and as it proves a very strong dislike to, and bitter feelings, on Curtis’ part, towards Mr. Cotton, the father of contestants, and tends, in some sort, to shew an insane delusion, and, that this delusion was the reason why the contestants were excluded from any benefits in the testator’s' will, therefore, it was proper to leave this question to the determination of the jury, under appropriate charges of the court.
For the error in giving the 18th and 19th charges to the jury, the order and decree of the probate court are reversed, and the cause remanded for further proceedings, at the cost of the appellee.